Most parents want what’s best for their children but during separations and divorces, this can become clouded by other matters.
The courts in Alberta will always pursue what’s in the best interests of the child in matters concerning children. Gaining full custody of a child is only possible, therefore, if you can show that the child’s best interests are served by such an arrangement — and that can be very challenging to do.
Generally, the family courts in Alberta consider that a child is best off spending time with both parents. This is considered the healthiest arrangement. If, however, a parent is unfit to make decisions for their child, the court will rule to protect that child. That may include awarding sole or full custody.
If you want to apply to the court for full or sole custody, the assistance of a child custody lawyer is generally required.
What types of child custody are there?
There are several different types of custody in Alberta, as follows:
- Physical custody: refers to who the child lives with and spends the most time with. It is usually shared, with the child living mainly with one parent, who has primary physical custody, with the other parent enjoying extensive visitation rights.
- Legal custody: refers to the legal authority to make decisions about health, education, religion, and other important matters. Joint legal custody is by far the most common. Sole legal custody is the authority to make decisions without the input of the other parent.
- Joint custody: where both parents share the responsibility for housing, caring for and making decisions for a child and these responsibilities are documented in a detailed parenting plan.
- Sole or full custody: this type of custody may be awarded in Alberta when joint physical and legal custody may be detrimental to a child (usually because one parent is deemed unfit to carry out parental duties).
It is important to note that full custody of a child does not mean that the other parent is not entitled to see the child. Visitation is a parental right so unless it is removed by the court, most parents with full custody must still arrange visits from the non-custodial parent.
Depending on circumstances, these visits may need to be “supervised” (usually at the non-custodial parent’s expense).
What is considered a child’s best interests?
A child’s best interests concern his/her physical, mental and psychological health and well-being. Judges in Alberta will consider the following factors when making this determination in child custody cases:
- The stability and security provided by each parent
- The relationship between the child and the parents during the marriage
- The capabilities of each parent to care for the needs of the child
- Previous history of domestic violence, incarceration, drug abuse, etc., from either parent
- The child’s preferences (if mature enough to express an opinion)
- Where each parent resides
- Any other factor that may affect the child’s physical, mental or psychological health and wellbeing
What are the pros and cons of joint custody?
Joint custody is the preferred option for the Alberta family courts because it offers the child regular contact with both parents.
It also provides the parents with shared responsibility for decision-making for the child’s upbringing and a more manageable financial solution.
However, if the following factors come into play, the joint custody option may need to be re-considered:
- The child needs to be “shuttled” between parents, which negatively impacts the child’s stability
- Decision-making becomes awkward and confusing
- Unmanageable costs are incurred by having to maintain two homes
- Parents are uncooperative, leading to problems in the family relationships
- Arguments or violence could disrupt the safety or well-being of the child
Who can apply for sole custody in Alberta?
Before you consider applying for sole custody, bear in mind that the Alberta courts generally only award sole custody in exceptional cases. Trying to gain full custody of a child out of revenge or to deliberately deprive the other parent will not be viewed kindly by the system here.
You should only apply for sole custody if you can prove that the other parent is unfit to make decisions or incapable of looking after the child — and that sole custody is better for the child’s well-being and upbringing.
That said, sole custody can be awarded to either the mother or the father in Alberta. It is gender-neutral.
Note that conditions will apply if you have sole physical custody of the child but joint legal custody with the other parent. The other parent must still be consulted in decision-making for major matters. So, if you want to relocate to another province with your child, for instance, you will need to provide written notice to the other parent and seek his/her consent before moving.
When is applying for sole custody possible?
Unlike joint custody, sole custody decisions in Alberta are rarely made amicably between parents and are generally made by courtroom judges.
Before applying for sole custody, you should consult with a child custody lawyer. You may be able to file for sole custody if any of the following situations apply:
- The child could be physically or psychologically harmed by the other parent
- There is a history of domestic violence or sexual abuse
- Regular drug or alcohol abuse from the other parent
- Severe mental illness or mental instability from the other parent
- Regular negligent or neglectful behaviour from the other parent could put the child in danger
- Unwillingness to cooperate with the court or carry out parental duties by the other parent
Ultimately, to apply for full custody of a child, you’ll need to prove that you can provide a stable and safe home life not possible in the case of joint custody with the other parent.
That can be extremely challenging. At Jennings Family Law in Calgary, our lawyers can help you resolve even the most complex family law and custody matters. Book a confidential case evaluation to get started.
